We read this "durational limitation," as did the Silvers majority, as reflecting an effort to "carefully circumscribe[ ]" the right to sue for infringement, marking an additional reason not to inject an additional untethered right to sue into the congressional silence. Silvers , 402 F.3d at 885 ; see also DRK Photo v. McGraw–Hill Glob. Educ. Holdings, LLC ("McGraw–Hill "), 870 F.3d 978, 988 (9th Cir. 2017). Following oral argument in this appeal, the Ninth Circuit decided that DRK lacked standing in a similar case, in which DRK sued McGraw–Hill, another publisher, for infringement.

Thus, a copyright holder cannot assign or transfer a bare right to sue. Id. ; see alsoDRK Photo v. McGraw–Hill Global Educ. Holdings, LLC , 870 F.3d 978, 987 (9th Cir. 2017) (holding that the substance and effect of the assignments and agreements purporting to assign ownership were "merely a transfer of the right to sue on accrued claims, which cannot confer standing" under the Copyright Act); Silvers v. Sony Pictures Entm't, Inc. , 402 F.3d 881, 890 (9th Cir. 2005) ("The bare assignment of an accrued cause of action is impermissible under 17 U.S.C. § 501(b)."). Section 501(b) states: "The legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it."

“Although a third party may not raise noncompliance with [§ 204(a)]'s writing requirement as a defense to a copyright transfer where he parties to the transfer do not dispute it existence, a third party is not foreclosed from challenging a plaintiff's ownership for purposes of standing.” DRK Photo v. McGraw-Hill Global Educ. Holdings, LLC, 870 F.3d 978, 986 (9th Cir. 2017) (citing Jules Jordan Video, 617 F.3d at 1157 and Righthaven, 716 F.3d at 1169).

"Although a third party may not raise noncompliance with [ § 204(a) ]’s writing requirement as a defense to a copyright transfer where the parties to the transfer do not dispute it existence, a third party is not foreclosed from challenging a plaintiff's ownership for purposes of standing." DRK Photo v. McGraw-Hill Global Educ. Holdings, LLC, 870 F.3d 978, 986 (9th Cir. 2017) (citing Jules Jordan Video, 617 F.3d at 1157 and Righthaven, 716 F.3d at 1169 ). The copyright plaintiff bears the burden of establishing a qualifying ownership interest in the copyright both as a substantive element of the infringement claim and also as a necessary predicate for standing to bring the claim.

When the deadline for amending the pleadings set in a court's scheduling order has passed, a party seeking leave to amend must first seek modification of the scheduling order. DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017). Under Federal Rule of Civil Procedure 16, a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4).

In contrast, a “‘nonexclusive license' does not constitute a ‘transfer of copyright ownership' and therefore cannot confer standing to assert an infringement claim.” DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 983 (9th Cir. 2017) (citing 17 U.S.C. § 101).

In contrast, a “‘nonexclusive license' does not constitute a ‘transfer of copyright ownership' and therefore cannot confer standing to assert an infringement claim.” DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 983 (9th Cir. 2017) (citing 17 U.S.C. § 101).

In contrast, a “‘nonexclusive license' does not constitute a ‘transfer of copyright ownership' and therefore cannot confer standing to assert an infringement claim.” DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 983 (9th Cir. 2017) (citing 17 U.S.C. § 101).

In contrast, a “‘nonexclusive license' does not constitute a ‘transfer of copyright ownership' and therefore cannot confer standing to assert an infringement claim.” DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 983 (9th Cir. 2017) (citing 17 U.S.C. § 101).

In contrast, a “‘nonexclusive license' does not constitute a ‘transfer of copyright ownership' and therefore cannot confer standing to assert an infringement claim.” DRK Photo v. McGraw-Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 983 (9th Cir. 2017) (citing 17 U.S.C. § 101).